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POTA under challenge

Print edition : Feb 14, 2003

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By admitting three petitions challenging the constitutionality of the Prevention of Terrorism Act, the Supreme Court has set the stage for a judicial review of the controversial piece of legislation.

in New Delhi

THE Prevention of Terrorism Act, 2002 (POTA), has been a controversial piece of legislation ever since it was conceived as a weapon against terrorism. In fact, a joint sitting of Parliament had to be convened to get the relevant Bill passed on March 26 last year, after the Rajya Sabha rejected it as adopted by the Lok Sabha. Since its enactment, the use (or abuse) of POTA by some State governments and the Centre in certain cases has come under public scrutiny. Human rights groups have alleged that the governments have invoked POTA selectively and on flimsy grounds against the political opponents of the ruling parties and persons belonging to the minority communities. The protagonists of the Act have, however, hailed the legislation on the ground that it has been effective in ensuring the speedy trial of those accused of indulging in or abetting terrorism. Whether or not POTA is useful in stemming "state-sponsored cross-border terrorism", as originally envisaged by Home Minister L.K. Advani, it has posed a serious threat to individual freedoms and certain fundamental rights guaranteed by the Constitution. By admitting three petitions challenging the constitutionality of POTA, the Supreme Court has now set the stage for a judicial review of the legislation. A Bench comprising Justices S. Rajendra Babu and G.P. Mathur has posted the petitions for March for a detailed hearing.

The petition, filed jointly by the People's Union for Civil Liberties (PUCL) and journalist and Member of Parliament Kuldip Nayar has stated that the Act lacks legislative competence, besides being violative of Articles 14, 19, 20, 21 and 22 of the Constitution. It argues that POTA falls, in its pith and substance, under Entry 1 of List-II (States' List) namely, `Public Order', on which only States, and not the Centre, are competent to legislate. In particular, the petition points out that the Supreme Court had erred in approving Parliament's competence in enacting the Terrorist and Disruptive Activities (Prevention) Act (TADA), 1987 in Kartar Singh vs State of Punjab (1994). The court had upheld the constitutionality of TADA in that case. TADA, which many civil rights groups consider to be less draconian than POTA, was allowed to lapse in 1995, following widespread complaints that it was being abused.

The petition highlights many sections in POTA which it says are in violation not only of certain constitutional provisions but also the spirit of some earlier Supreme Court judgments. It seeks to show that Section 3(3), which provides that whoever "abets" a terrorist act shall be punishable, fails to address to the requisites of the mens rea (intention). This provision has been incorporated in POTA in spite of an observation by the Supreme Court's Constitution Bench in Kartar Singh that the word `abet' as used in TADA is vague and so has to have the requisites of intention or knowledge. The PUCL petition argues that the vagueness in the POTA provision will lead to its abuse.

Under Section 4 of POTA, any person who is in possession of unlicensed arms in a notified area is presumed to be guilty of a terrorist act, whereas ordinarily the person could be prosecuted only under the Arms Act for such an offence. The PUCL petition points out that here an offence coming under the Arms Act has been brought under POTA, irrespective of whether a person carrying such arms has any nexus with a terrorist. Section 4 has to be read with Section 5 which provides for life imprisonment for anyone found guilty of contravening the Arms Act with an intention to aid a terrorist.

Under Section 7, a police officer investigating an offence under POTA can seize or attach any property if he has reason to believe that such property constitutes the proceeds of terrorism. The petition articulates the fear that permitting a police officer to act on the basis of his belief will be "draconian and unguided".

Section 14 requires any officer or authority of the Central or a State government, other organisations and institutions, and even individuals to furnish to an investigating officer information relating to such an offence, and makes the failure to do so an offence. The petition argues that this provision is against Article 20 of the Constitution, besides being an onslaught on individual freedom and right to privacy.

Article 20 guarantees protection in respect of conviction for offences and Article 20(3) makes it clear that no person accused of any offence shall be compelled to testify against himself. The scope of this immunity from self-incrimination has been widened by the Supreme Court to mean that no person can be compelled to furnish any kind of evidence (in the nature of a communication, as opposed to a material evidence) which is reasonably likely to support a prosecution against himself. The petition claims that Section 27 of POTA, insofar as it compels even a suspect to give fingerprints, handwriting samples, or specimens of blood, saliva, and so on, for the purpose of investigation, is violative of Articles 20(3) and 21 (protection of life and personal liberty).

So far, the Union of India, instead of making out a strong case in defence of the Act, has only cited the "general consensus in various quarters" that an anti-terrorism law is essential in the present-day situation when terrorism has spread its tentacles across the world. There is global consensus, it claimed, on the need to enact special laws to deal with terrorism, define terrorist acts and prosecute persons and groups engaged in planning and perpetrating terrorist acts and financing such acts. Finally, it argued that POTA became inevitable as a piece of legislation because countries such as the United States, the United Kingdom and Pakistan have enacted similar laws in the recent past. While arguing that the PUCL's petition is devoid of merit or substance, the Union government has offered to make its submissions on the specific grounds of challenge to POTA as stated in the petition, during the course of the hearing.

One of the petitions in this regard admitted by the Supreme Court has been filed by Vaiko, the general secretary of the Marumalarchi Dravida Munnetra Kazhagam (MDMK), a constituent of the ruling National Democratic Alliance at the Centre. Vaiko has been in detention under POTA in Tamil Nadu since July last year.

As leader of the MDMK group in Parliament, Vaiko had defended POTA in Parliament during the debate on it. Therefore his petition challenging the validity of Section 21 of the Act assumes particular significance. Under this Section, a person commits an offence if he invites support for a terrorist organisation, and even if the support is not confined to the provision of money or other property. He is guilty if he arranges or addresses a meeting which he knows is meant to support a terrorist organisation or to further its activities.

Vaiko was arrested under this Section on the basis of certain remarks he allegedly made at a public meeting organised by his party at Thirumangalam in Madurai district on June 29, 2002. In his speech, the petition contends, Vaiko repeated the remarks he had made during the debate in the Lok Sabha on the situation in the riot-hit Gujarat on April 30, 2002. During that debate, he was interrupted by Congress(I) and All India Anna Dravida Munnetra Kazhagam (AIADMK) members who called him an agent of the Liberation Tigers of Tamil Eelam (LTTE), a banned outfit under POTA, and sought an explanation from him for his support to it. According to the petition, Vaiko repeated at the meeting what he said in the Lok Sabha: "I was a supporter of [the] LTTE once. I was a supporter of [the] LTTE yesterday; I am a supporter of [the] LTTE today and I will be a supporter of [the] LTTE tomorrow." Then, according to the petition, he asked his audience whether the LTTE had engaged in terrorism for the sake of violence or had taken up arms to suppress a culture. He added: "What a great history of sacrifice is in the backdrop of the struggle they are waging!" The LTTE began to fight because of a series of atrocities against Tamils, he claimed. Vaiko has appended to the petition a translation in English of his Tamil speech made at Thirumangalam.

The First Information Report filed by the police against Vaiko which is appended to the petition reveals that the police believed that Vaiko's repeating to his Thirumangalam audience what he had said in the Lok Sabha constituted an offence under POTA, and that the immunity given to MPs under Article 105 against any proceedings in any court in respect of anything said in Parliament did not apply to him in this case, as he had repeated the remarks outside Parliament. Vaiko has challenged this contention in his petition. The FIR also construed his remarks at the public meeting on the LTTE's struggle as an instance of violation of POTA.

In his petition, Vaiko has held that Section 21 of POTA offends Article 19(1) (a) which guarantees the right to freedom of speech and expression and 19(1)(c) under which the right to form associations (and by implication, a political party) or unions is derived. Vaiko made a distinction between support to the LTTE in Sri Lanka in its crusade for the cause of the suffering Tamils, and support to the LTTE in India: he suggested that as long as he desisted from extending support to the LTTE and its activities in India, POTA could not be invoked against him on the issue. Will this subtle distinction convince the Supreme Court?

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